9911796707
TMI Blog2009 (3) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent. JUDGMENT JUSTICE D. A. MEHTA - This petition has been preferred, challenging order dated 21/7/2008 bearing No. 124/ FINAL ORDER / CEX /MGR/2008 (Annexure-H), and order dated 8/1/2008 bearing No. 07/CEX/MGR/2008 (Annexure-C) made by the Customs Central Excise Settlement Commission, Additional Bench, Mumbai ("Settlement Commission"). The facts are that pursuant to show cause notice dated 18/5/2005 during pendency of proceedings, an application came to be moved before Settlement Commission by the petitioner company on 27/5/2007 admitting duty liability of Rs.23,80,732/-. Before the application dated 27/5/2007 was filed, a separate show cause notice in relation to a different period came to be issued on 30/11/200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the applicant, vide letter dated 30.05.2007, has disclosed an additional duty liability amounting to Rs.14,63,733/-. The applicant had further submitted that the amount of duty has been evaded by it by clearing the goods clandestinely and the details of which are as mentioned in Annexure-I in sealed cover. The applicant made it appear as if this disclosure pertains to the application filed on 22.05.2007. On closer scrutiny, it is clear that the additional disclosure of Rs. 14,63,783/- is with reference to another Show Cause Notice, different from the Show Cause Notice No. V(Ch. 73 84) 3-01/Dem/05 dated 18.05.2005 issued by Additional Commissioner, Central Excise Customs, Vapi, for which application was filed on 22.05.2007 by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant case, the application filed by the applicant is deemed to have been filed on 30.05.2007. Asper sub-section (6) of section 32F of the Act, 'an order under sub section (5) shall not be passed in respect of an application filed on or before the 31st day of May, 2007, later than the 29th day of February, 2008 and in respect of an application made on or after the 1st day of June, 2007, after nine moths from the last day of the month in which the application was made, failing which the settlement proceedings shall abate, and the adjudicating authority before whom the proceeding at the time of making the application was pending, shall dispose of the case in accordance with the provisions of this Act as if no application under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Commission dated 10/7/2008 rejecting application also suffered from a legal infirmity and the petition was required to be allowed accordingly. Learned counsel appearing for the respondent authorities submitted that, if the second order dated 10/7/2008 is perused, it would indicate that the application which was filed on 5/5/2008 was taken up for hearing on 4/6/2008 and, thus the hearing had taken place within a period of 29 days. Thus it was incorrect on part of the petitioners to state that Settlement Commission could not have acted in accordance with the requirement of provisions. It was further submitted that the first order dated 8/1/2008 had been received by the petitioner on 14/1/2008, despite which the second application had bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the present case, admittedly, the petitioner had moved Settlement Commission on 30/5/2007 in the form of a letter in relation to the second show cause notice dated 30/11/2006. Therefore, if the Settlement Commission in its first order dated 8/1/2008 recorded that the application in the prescribed form should substitute the letter dated dated 30/5/2007, by treating such an application as having been deemed to have been filed on 30/5/2007, no fault can be found with the Settlement Commission. The test is, if instead of letter dated 30/5/2007, the petitioner had moved a separate application in the prescribed form on 30/5/2007 itself, the statutory period of limitation which expires on 29/2/2008, would have come into play. That is the only ..... X X X X Extracts X X X X X X X X Extracts X X X X
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